Judicial Activism

Michael Kinsley's critique of right-wing philosophy is either disingenuous or incredibly ignorant. He talks about the three "A"s of right wing judicial philosophy - Abortion, Affirmative Action and Activism. He claims there is a conflict because conservatives claim that they oppose Roe v. Wade because it is an activist decision that tramples on the right of democratic institutions to decide the issue, yet they also are willing to overturn the decision of the same democratic institutions to impose affirmative action programs. However, he completely ignores the one key legal distinction between these two issues. The Constitution quite clearly states in the Fourteenth Amendment that all persons must be treated equally under the law. There is nothing in the text of the Constitution that could reasonably construed to grant a right to abortion. This distinction is the reason why conservatives attack Roe v. Wade as an activist decision. It has nothing to do with the overturning of a decision of elected officials. Every mainstream jurist agrees that it is appropriate to overturn a law passed by a legislature when it conflicts with a constitutional provision. The whole argument is about whether or not it does conflict. The basis of conservative judicial philosophy is that when a law is struck down it must be based on the text of the constitution, not some made-up right. Kinsley completely ignores this point and instead attacks a straw-man argument that anytime a democratic body is overturned, the court is an activist one. The core of the conservative argument is that the Court should act as a Court, not a legislature. When it is appropriate to strike down a law it should do so because the Constitution is the highest law of the land. Making sense of conflicts between the Constitution and lower laws is what an appellate judge is supposed to do.